Nett v. Bellucci

• Decision Date: 04 September 2002
• Citation: 774 NE 2d 130,437 Mass. 630
• Parties: AARON NETT & others v. MITCHELL J. BELLUCCI & another.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

437 Mass. 630

774 NE 2d 130

AARON NETT¹ & others² v. MITCHELL J. BELLUCCI & another.³

Supreme Judicial Court of Massachusetts, Suffolk.

May 7, 2002.

September 4, 2002.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

Kenneth M. Levine for the plaintiffs.

Michael J. Racette for the defendants.

SOSMAN, J.

The United States Court of Appeals for the First Circuit has certified the following questions to this court, pursuant to S.J.C. Rule 1:03, as appearing in 382 Mass. 700 (1981):

"(1) Is the operative date for commencement of an action for purposes of the Massachusetts statutes of repose the date of filing of a motion and supporting memorandum for leave to amend a complaint to add a party (assuming timely service), or is the operative date the date the amended complaint is filed after leave of court is granted, when leave of court is required by the Rules of Civil Procedure to file an amended complaint?

"(2) If the answer to Question No. 1 is that the operative date is the date of filing of the motion for leave to amend, do the policies underlying the statutes of repose require that such filings be in compliance with the local rules of court applicable to the filing of such motions, or do those policies permit the court in its discretion to excuse non-compliance with the local rules?"

Nett v. Bellucci, 269 F.3d 9 (1st Cir. 2001). We answer the certified questions as follows: (1) The operative date for commencement of an action for purposes of a statute of repose is the date of filing of a motion for leave to amend a complaint to add a party; and (2) the policies underlying the statute of repose do not require that the motion for leave to amend comply with the local rules, as long as the motion itself is accepted for filing within the period provided by the statute of repose.

1. Facts. We summarize the facts as set forth in the opinion accompanying the certification order, augmented by details provided in the record of the underlying proceedings. See Nett v. Bellucci, 269 F.3d 1, 2-5 (1st Cir. 2001). Aaron Nett was born at Milford-Whitinsville Hospital on April 2, 1992, weighing more than eleven pounds. The delivery was complicated because of Aaron's large size, and the infant suffered a nerve injury as a result of those complications. On March 26, 1992, one week prior to Aaron's birth, Dr. Peter Gross had performed and interpreted an ultrasound, estimating the fetal weight at only eight pounds. Dr. Mitchell Bellucci, the obstetrician attending Aaron's delivery, had relied on that ultrasound reading and had therefore not anticipated the complications that ensued during the delivery of a much larger baby.

On April 30, 1996, the plaintiffs filed a complaint against Dr. Bellucci in the United States District Court for the District of Massachusetts, alleging that he had been negligent in the prenatal care and delivery of Aaron. As part of his defense, Dr. Bellucci took the position that he had reasonably relied on the estimated fetal weight provided by the radiologist's ultrasound reading, and that his failure to anticipate delivery of a baby weighing eleven pounds was therefore not negligent.

On June 30, 1998, the plaintiffs served a subpoena duces tecum on the hospital seeking production of the ultrasound films. The hospital told the plaintiffs that the films had been destroyed. At his August 4, 1998, deposition, Dr. Gross testified that his efforts to obtain the ultrasound films had also been unsuccessful, as the hospital had similarly informed him that the films were no longer available. The hospital, responding to a second subpoena duces tecum, finally recovered and produced the ultrasound films on February 4, 1999.

On March 10, 1999, after obtaining an expert's review of the films and an opinion concerning their proper reading, the plaintiffs filed a motion for leave to amend their complaint to add Dr. Gross as a defendant pursuant to Fed. R. Civ. P. 15 (a).⁴ The motion and accompanying ten-page memorandum set forth the facts of the case and explained that the plaintiffs had been unable to assert a claim against Dr. Gross at any earlier point due to the hospital's claimed loss of the ultrasound films. Although the plaintiffs did not attach a proposed draft of their amended complaint, the memorandum accompanying the motion outlined the plaintiffs' contention that Dr. Gross had been negligent in his reading of the ultrasound, identified their expert and his opinion that "Dr. Gross fell below the standard of care in his evaluation of the ultrasound film," and stated that "Dr. Gross is a necessary party due to his negligence by and through his position as [the] radiologist involved in the care of Aaron Nett at the Milford-Whitinsville Hospital." The memorandum also provided the details of the complications that had ensued during Aaron's delivery and the nature of the resulting injuries. In order to explain the delay in adding Dr. Gross as a defendant, the memorandum also chronicled the difficulties encountered in obtaining the actual films.

When they filed their motion, the plaintiffs failed to comply with Massachusetts District Court Local Rule 15.1 (b), which requires service of "the motion to amend upon the proposed new party at least ten (10) days in advance of filing the motion, together with a separate document stating the date on which the motion will be filed." Local rule 15.1 (b) further provides that "[a] motion to amend a pleading to add a new party shall be accompanied by a certificate stating that it has been served in advance on the new party as required by this rule." Although no such certificate accompanied the plaintiffs' motion for leave to amend, the clerk of the court apparently accepted the filing on March 10, 1999.

After the plaintiffs themselves realized their error, they served Dr. Gross with the motion for leave to amend on March 19, 1999, and refiled their motion with the court on March 29, 1999, in compliance with local rule 15.1 (b). Over the opposition of Dr. Gross, the court granted the plaintiffs' motion for leave to amend on April 8, 1999, and the amended complaint was filed on April 26, 1999.

Dr. Gross filed a motion to dismiss the amended complaint, arguing that the plaintiffs' claims against him were barred by the statutes of repose.⁵ See G. L. c. 231, § 60D; G. L. c. 260, § 4. Because he had performed and interpreted the ultrasound on March 26, 1992, Dr. Gross contended that any amended complaint adding him as a defendant would have had to be filed by March 26, 1999, the expiration of the seven-year repose period provided by the applicable statutes. See G. L. c. 231, § 60D; G. L. c. 260, § 4. The second motion for leave to amend the complaint, filed on March 29, 1999, and the actual amended complaint, filed on April 26, 1999, both fell beyond that expiration date. The plaintiffs opposed the motion to dismiss, arguing that the repose provisions allowed them until April 2, 1999, Aaron's seventh birthday, to file a complaint against Dr. Gross and that their motion to amend, filed in compliance with local rule 15.1 (b) on March 29, 1999, had "commenced" the action within the repose period.

The Federal District Court initially denied the motion to dismiss. The court determined that the repose period expired on March 26, 1999, rather than April 2, 1999, but excused the violation of local rule 15.1 (b) as harmless error, deemed the motion for leave to amend to have been properly filed on March 10, 1999, and tolled the time that had elapsed between the filing of the first motion for leave to amend and the filing of the amended complaint. On a motion for reconsideration, however, the court reversed itself, concluding that a statute of repose could not be tolled in light of Protective Life Ins. Co. v. Sullivan, 425 Mass. 615, 631 n.19 (1997), and cases cited. Because the plaintiffs had not filed their amended complaint prior to March 26, 1999, the claims against Dr. Gross were dismissed.

On appeal to the United States Court of Appeals for the First Circuit, the plaintiffs were unsuccessful in pressing their theory that the statutes of repose ran from the child's birth date. See Nett v. Bellucci, 269 F.3d 1, 6 (1st Cir. 2001). The March 26, 1999, seven-year anniversary of the ultrasound reading was held to be the applicable date for purposes of the statutes of repose, and both the March 29, 1999, motion for leave to amend, and the later April 26, 1999, filing of the complaint, fell outside that repose period. The question, then, was whether the March 10, 1999, filing of a motion for leave to amend qualified as the "commencement" of the action against Dr. Gross for purposes of the statutes of repose. Because the case was a diversity action, State law determined when the action was "commenced" for purposes of statutes of limitations or statutes of repose. Id. at 7, citing Walker v. Armco Steel Corp., 446 U.S. 740, 751 (1980). Finding "no controlling precedent on the question of what constitutes the commencement of an action for the purpose of the Massachusetts statutes of repose," the court certified the two questions now before us. Nett v. Bellucci, supra at 8.

2. Commencement of an action. The first certified question asks us to determine, for purposes of our statutes of repose, what step in the proceedings constitutes the commencement of an action against a party who is added by way of amendment to the complaint. Both the statute governing medical malpractice tort claims involving minors, G. L. c. 231, § 60D, and the statute governing medical malpractice tort claims generally, G. L. c. 260, § 4, provide that "in no event shall any such action be commenced more than seven years after occurrence of the act or omission which is the alleged cause of the injury upon which such action is based" (emphasis added). Like all statutes of repose, "[t]he effect [of these statutes] is to place an absolute time limit on the liability of those within ...